Mars Exchange
Space law, the legal environment on Mars, and ‘space pirate’ Mark Watney

Space law, the legal environment on Mars, and ‘space pirate’ Mark Watney

by Natasha Schön on Wednesday, 17th August 2016 in

As Mark, 'The Martian', Watney set out on his month long journey to the Mars Ascent Vehicle, he asked for NASA to call him 'Captain Blondebeard'. This stems from the legal conclusion he arrived at while travelling:

I’ve been thinking about laws on Mars. There’s an international treaty saying that no country can lay claim to anything that’s not on Earth. By another treaty if you’re not in any country’s territory, maritime law applies. So Mars is international waters. Now, NASA is an American non-military organization, it owns the Hab. But the second I walk outside I’m in international waters. So here’s the cool part. I’m about to leave for the Schiaparelli Crater where I’m going to commandeer the Ares IV lander. Nobody explicitly gave me permission to do this, and they can’t until on board the Ares IV. So I’m going to be taking a craft over in international waters without permission, which by definition… makes me a pirate. Mark Watney: Space Pirate.” ('The Martian' by Andy Weir, 2011)

This made us wonder whether this is really true. Our community also regularly asks us questions about space law and Mars. Therefore, we asked Ron Sun, an intern at Mars One in the field of Space Law, to help us answer some questions regarding space law. 

Ron Sun currently studies Air and Space Law at Leiden University, and specializes in the field of space debris and commercial space law. His previous educational experience includes a bachelor in Law and a LLM degree in International Law. He has professional experience as a lawyer in Taiwan.

To start, we’d like to provide a brief vocabulary list with relevant instruments, words, concepts, and abbreviations:

  • Outer Space Treaty (OST): The OST is a treaty from 1967 that forms the basis of international space law. Among other things, it states that outer space, including the moon and other celestial bodies, shall be free for exploration and use, and that the exploration and use shall benefit all countries. It exclusively limits the use to peaceful purposes and prohibits the use for testing weapons of any kind, conducting military maneuvers, or establishing military bases, installations, and fortifications.
  • Liability Convention: The Liability Convention is a treaty from 1972 that expands on the liability principles created in the OST.
  • Registration Convention: The Registration Convention is a treaty that established a regime of registration of space objects.
  • Moon Agreement: The Moon Agreement (MA) is an international treaty that applies clauses from the OST to the exploration and use of Moon and other celestial bodies. These celestial bodies should be used for peaceful purposes and without disruption of their environments. Also, this agreement declared that the Moon and its natural resources are Common Heritage of Mankind (CHM). Until today, only a limited number of states have ratified the Moon Agreement due to a debate of the CHM principle.
  • Common Heritage of Mankind: Common Heritage of Mankind is a principle of international law that defines that certain areas should be governed and exploited through the administration of an international authority to benefit all humankind, instead of being exploited by individual states, persons, companies or other entities. The introduction of this principle in the MA started an international debate. The reasons of debate are various, but one of the reasons is that the application of the doctrine via MA may jeopardize national interests of space-faring states. This debate remains unsolved and as a result the MA has not been signed by all states.
  • Outer Space: Outer Space is the void that exists between Earth and other celestial bodies physically. [1] There is no internationally agreed definition or delimitation between air space and outer space, although this issue has been discussed for more than forty years in the UN. Several theories exist, but some states prefer to leave this question unanswered for various reasons. In practice, 100 km is often suggested as the demarcation line.
  • Celestial body: A natural and physical object outside of the Earth’s atmosphere that exists in the universe. For instance, stars, planets, asteroids, and comets. [2]
  • Jurisdiction: In general, jurisdiction is a term that describes the authority of a state to prescribe rules of law and administer justice under the law in a certain area.
  • Launching State: A state which launches or procures the launching of a space object; a state from whose territory or facility a space object is launched.
  • Non-appropriation/Non-sovereignty: Outer space, including the Moon and other celestial bodies such as Mars, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.
  • Space object: Space objects include[s] component parts of a space object as well as its launch vehicle and parts thereof.

What is space law?

In general terms, space law is a set of rules that regulate all activities carried out by states in outer space. Much like law here on Earth, it consists of agreements, treaties, conventions and regulations to name a few. The primary goal of space law is to ensure that space exploration follows a rational and responsible approach. Space law can be divided into both international and national space law. Current international space law mainly comes down to five space treaties and several UN resolutions (Note that these treaties are only legally binding for those countries that have signed and ratified them). These treaties are an outcome of the Cold War as a compromise between the two space powers, the US and the Soviet Union. There are several important principles which have been stated in the treaties, which include free exploration and use of outer space, non-sovereignty, and non-appropriation. Moreover, national space law addresses multiple national regulations regarding space-related activities. The regulations are derived from international space law, and are adjustable to individual countries. National space law comes into play when space objects need to be launched and returned from space, for the operation of a launch and reentry site, the control of space objects, and exploration activities for example.

You can find more information about space law on the website of the United Nations Office for Outer Space Affairs.

What is the legal environment on Mars?

States are bound by international space law. If they carry out activities in outer space, those activities are governed by international space law.

Outer space, including the moon and other celestial bodies, shall be free for exploration and use by all States without discrimination of any kind, on a basis of equality and in accordance with international law, and there shall be free access to all areas of celestial bodies.” (Article I OST)

If a private organization carries out activities in outer space, a State must authorize and supervise them, and so indirectly these activities must also comply with international space law, albeit via a national licensing system.

The activities of non-governmental entities in outer space, including the Moon and other celestial bodies, shall require authorization and continuing supervision by the appropriate State Party to the Treaty.” (Article VI OST)

Based on the principles of international space law, sovereignty and appropriation are prohibited in outer space and other celestial bodies, including Mars. Just because Neil Armstrong placed an American flag on Earth’s moon, doesn’t mean that the US owns it. Likewise, if a state or a private entity lands on Mars, they can’t become the ruler or owner of the area. As for jurisdiction, the astronauts, stations, installments, equipment, and space vehicles that will be sent to Mars, fall under the jurisdiction of a state on Earth. This means the state which has registered the modules will have jurisdiction over them. (Note that according to the rules of international space law, the state of registry must be a launching state). So for example, if the US is the state of registry of the Mars One living modules on Mars, those modules and the inhabitants inside will fall under US jurisdiction.

A State Party to the Treaty on whose registry an object launched into outer space is carried shall retain jurisdiction and control over such object, and over any personnel thereof, while in outer space or on a celestial body.” (Article VIII OST)

When a space object is launched into Earth orbit or beyond, the launching State shall register the space object by means of an entry in an appropriate registry which it shall maintain.” (Article II Registration Convention)

How is the legal environment of the International Space Station (ISS) comparable to that of a human settlement on Mars?

The international cooperation on the ISS is a good example of how countries can work together to handle both people and equipment in space. Mars One will be sending people from all over the world to the Red Planet. This doesn’t mean that the legal environment will be similar, as this is largely affected by the countries the settlement modules have been launched from. If the modules on Mars will all be registered by one single country, this reduces the complexity of jurisdiction as compared to the ISS. On the ISS, astronauts live and work in a space structure which consists of modules and capsules made by multiple states. The U.S., Japan, Canada, Russia, and a number of European states came to an Intergovernmental Agreement (IGA) in 1998 to form a legal framework for the ISS. The IGA provides that each contracting state registers, and thus retains jurisdiction and control over the flight elements they provide.

Is someone on Mars under Maritime law like it was suggested in The Martian?

So, coming back to our very first question: is Mark Watney really a space pirate? On Earth, the international sea and international seabed have been declared as ‘Common Heritage of Mankind’ by signatories of United Nations Convention on the Law of the Sea of 1982 as amended in 1994. The ‘Common Heritage of Mankind’ concept was also introduced in the Moon Agreement of 1979. According to the treaty, the Moon and other celestial bodies (including Mars) and their natural resources are the Common Heritage of Mankind. Depending on the interpretation of that treaty, Mark Watney could argue that Mars and international seas have a similar legal structure, making him a ‘pirate’. But the fact is, although outer space and international waters both have the same legal position (res communis), the applied regimes in these two environments are different. In the scenario of ‘The Martian’, the US has jurisdiction on the NASA facilities and equipment on Mars. Furthermore, as an employee of NASA, Mark Watney’s behavior is governed by his employment contract. If for any reason he would go outside of the facilities or rover without NASA’s approval, there could be measures of discipline foreseen by his contract. It is important to acknowledge that many other elements may affect the legal situation on Mars in practice. From the view of space law, the fictional character Mark Watney in ‘The Martian’ is not an illegal in outer space nor a space pirate comparable to a pirate on the high seas.

Suggestions for further reading on space law:

[1] Barry Dainton, Time and space (McGill-Queen's Press, 2001), pp. 145-146.

[2] Celestial Body, http://www.universetoday.com/48671/celestial-body/

Credit header image: UN Photo

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